Revision of G3/04? – Discussion on the continuation of the appeal by intervener

In opposition appeal proceedings “T1286/23.3.2.04”, Board 3.2.4 intends to deviate from decision G 3/04 and thus raises the prospect of a corresponding question being referred to the Enlarged Board of Appeal.

It is questionable for the Board whether appeal proceedings can be continued after withdrawal of the appeal by the sole appellant (here: the opponent) with an intervener to the appeal proceedings pursuant to Art. 105 EPC (“intervention of the assumed infringer”).

Background:

According to established case law, withdrawal of the appeal by the sole appellant terminates the proceedings, since an intervener has at best a dependent party status (see G 3/04). Chamber 3.2.4 now intends to deviate from this.

In the present case, the intervener had already tried to intervene in the opposition proceedings at first instance. However, the opposition division finally rejected the intervention as inadmissible. The patent was maintained in the first instance proceedings to the extent of auxiliary request 1.

The (sole) opponent filed an appeal against the maintenance. The intervener also applied to rejoin the proceedings – albeit after expiry of the appeal period – and also lodged an appeal and applied for revocation of the patent in its entirety.

Subsequently, the appellant withdrew its appeal, which according to G3/04 would actually have resulted in termination of the proceedings.

The Board of Appeal now takes the preliminary view that the appeal proceedings are not terminated, but rather must be continued with the intervener as the (new) appellant. In its preliminary opinion, it justifies this by stating that the conditions for intervening are determined solely by Article 105 EPC, which merely ties the admissibility of intervening and thus participation in the proceedings to a legal interest of the intervener based on parallel infringement proceedings or a negative declaratory judgment. This legal interest “replaces” other conditions defined in the EPC which actually apply to admissibility. Thus, the condition defined in Art. 107 EPC that only parties to proceedings who are adversely affected by a (first instance) decision may lodge an appeal would also be “replaced” by the legal interest under Art. 105 EPC. Accordingly, in the opinion of the Board, the appeal proceedings should actually be continued with the intervener.

The Board leaves a decision on the admissibility of the intervener’s – actually belated – appeal open for the time being, as the first question to be resolved is whether or not the proceedings can in principle be continued.